Lynch v. Jackson

• Decision Date: 11 November 1937
• Docket Number: 4 Div. 988
• Parties: LYNCH v. JACKSON et al.
• Court: Alabama Supreme Court

177 So. 347

235 Ala. 90

LYNCH v. JACKSON et al.

4 Div. 988

Supreme Court of Alabama

November 11, 1937

Rehearing Denied Dec. 16, 1937

Appeal from Circuit Court, Henry County; D.C. Halstead, Judge.

Suit in equity by Mrs. G.E. Jackson and others against Mrs. M.A Lynch and others to sell lands for division of proceeds among joint owners. From a decree ordering the lands sold, the named respondent alone appeals.

Reversed and remanded.

O.S Lewis and Emmet S. Thigpen, both of Dothan, for appellant.

Martin & Jackson and Tompkins & Ramsey, all of Dothan, for appellees.

THOMAS Justice.

The bill sought partition of real property among cotenants by its sale.

A material part of the testimony was taken orally before the circuit court and judge rendering the final decree. It is supported by the intendments that prevail. Hodge v Joy, 207 Ala. 198, 92 So. 171.

The respective insistences are that the possession of the land by Mrs. Lynch, formerly Mrs. Espy, was in recognition of complainants' right, title, and interest therein; the contrary insistence being made that the long holding by Mrs. Espy was not merely permissive, but was open, notorious, and adverse to the interests of complainants and the other persons so interested. It is well stated by the trial judge that the character of the possession of Mrs. Lynch was the turning point in this decision. Did Mrs. Espy hold and enjoy the usufruct from the land as adverse holder or under her quarantine rights as widow?

It is recited in the decree as follows: "Miss Gray Espy, one of the complainants in this cause, testified, in substance, that she went to the home of respondent, Mrs. M.A. Lynch, not long after the death of Thomas F. Espy, and told her, Mrs. M.A. Lynch, she could not sell the lands involved in this suit and that Mrs. Lynch said she knew she could not sell it and that she was not trying to sell it. It is true that Mrs. Lynch, in her rebuttal testimony, denied that such statements were made by Miss Gray Espy and herself. Did this conversation take place? If so, the Court is of the opinion that the possession of Mrs. Lynch was permissive. If this conversation did not take place, then the Court might be of the opinion that her possession was adverse. If the conversation did not take place, why the anomalous situation in this case, with reference to the deed that Mrs. Lynch claims that Thomas F. Espy executed and delivered to her in the year 1909 prior to his death? If this conversation did not take place, why did Mrs. Lynch not take the necessary steps, after the death of Mr. Espy, to have her dower interest in the lands involved in this suit set apart to her? If this conversation did not take place, why did Mrs. Lynch not take steps to have this land or a portion of it set aside to her in lieu of a homestead? These are matters which, in the judgment of the Court, corroborate the testimony of Miss Espy with reference to her conversation with Mrs. Lynch and impels the Court to the conclusion that the possession of Mrs. Lynch, during all these years, of the lands involved in this suit was permissive, so far as the complainants in this case are concerned, and that Mrs. Lynch so understood her possession of these lands during the entire period of time covered by her possession. ***"

From the decree ordering the lands sold, only Mrs. M.A. Lynch appeals; and the two respondents, Mrs. Fannie Escott and Frank C. Espy, took no appeal.

It is admitted that the decree is in error as to the respective interests of the joint tenants, and this court is asked to correct the decree in this respect.

In Yarbrough v. Yarbrough, 200 Ala. 184, 75 So. 932, the authorities are collected to the effect that where the widow retains the use of the land of a deceased husband, she may so hold until dower is assigned without having to account for rents, income, and profits therefrom. In such case there is placed upon the owner of the fee the burden of having dower assigned. It is further declared that failure to have dower assigned, and permitting the widow to retain possession without more, does not deprive the owner of the fee in the land.

Appellant relies on Miller v. Vizzard Inv. Co., 195 Ala. 467, 70 So. 639, and other authorities now to be considered. In the Miller v. Vizzard Inv. Co. Case, supra, there was a lack of evidence that the possession held was permissive. Here there was evidence that Miss Espy personally notified the widow, Mrs. Lynch, that her use of the land was merely permissive. We think, as did the trial court, as we have indicated, that such fact and notice was corroborated. It is true that the trial judge did not hear Miss Espy give her evidence on this question, yet he did hear the testimony of Mrs. Lynch, who denied the testimony of Miss Espy as to showing that notice was given.

It is sufficient to note that the case of Shotts v. Carpenter et al., 232 Ala. 487, 168 So. 884, was not that of a tenant in common; and in Arendale et al. v. Washington et al., 213 Ala. 23, 104 So. 133, knowledge of adverse holding was brought home to the other cotenants. In Winsett v. Winsett, 203 Ala. 373, 83 So. 117, and in Palmer v. Sims et al., 176 Ala. 59, 57 So. 704, no such notice was chargeable to the cotenants, who challenged the adverse holding of cotenant in possession.

In Black et al. v. Black et al., 233 Ala. 425, 172 So. 275, it is observed: "But, in August, 1910, and after the death of her other sisters, Bethenia executed a warranty deed purporting to convey to Wash Black the entire title to the land in controversy for a recited consideration of $500 which deed was duly recorded in November following. Whether Litel Black, the father of Wash, was then living the record does not indicate. If so, then Wash Black was a stranger to the title, and his possession thereunder would constitute an ouster of the cotenants under the authority of Dew v. Garner, 207 Ala. 353, 92 So. 647, 27 A.L.R. 5, and Short v. De Bardeleben Coal Co., 208 Ala. 356, 94 So. 285." That is to say, in the last-cited case Black was a stranger to the title. Here Mrs. Lynch was a cotenant. In the Black Case there was no evidence of a permissive use, as was the tendency of evidence in the case at bar. In the Black Case the insistence was adverse possession and prescription under a deed regularly executed and recorded. Here Mrs. Lynch offered no such evidence of title or color of title. Lyons v. Taylor, 231 Ala. 600, 166 So. 15.

The foregoing will illustrate the recent holdings of this court that have application or nonapplication to the facts, as we have indicated. When the entire record is carefully examined we find that complainants' contention that Mrs. Lynch was permitted to remain in possession of the land and to use the proceeds therefrom in support and maintenance of herself as the widow and the infant children (Fannie Espy Escott, Franklin C. Espy, and Mary Elizabeth Espy) of Thomas F. Espy, deceased, from 1910 to the bringing of this suit, is...